Citation Nr: 1554254
Decision Date: 12/30/15 Archive Date: 01/07/16
DOCKET NO. 14-19 134 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to a temporary total evaluation based on treatment for a service-connected or other condition subject to compensation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. L. Marcum, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1988 to November 1988. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
In an October 2011 statement, the Veteran indicated that he was "applying for the increase due to a rotator cuff tear, a ruptured bicep tendon." The Veteran also stated, "I have a year wait just for the pre-op appointment. No surgery date set yet, and . . . surgery and rehab will be another year. I can't work until this is fixed." Additionally, the Veteran requested a "disability rating on the grounds of having developed type II diabetes."
In February 2013, the Veteran submitted a statement requesting a temporary total disability rating for left shoulder surgery that he underwent on February 21, 2013.
In a May 2014 statement, the Veteran asserted that he had been out of work for three years due to 'this' injury. He indicated that he had one surgery and that he was expecting another surgery soon since the first surgery did not fix the rotator cuff tear. The Veteran also indicated that he was a professional truck driver and could not "go back until this injury is fixed."
Under these circumstances, the Board finds that the Veteran has raised the issues of (1) entitlement to service connection for diabetes mellitus, type II; (2) entitlement to service connection for residuals of a left shoulder injury (claimed as a rotator cuff tear and a ruptured bicep tendon), status post arthroscopic surgery, to include whether a temporary total disability rating is warranted based on the need for convalescence following left shoulder surgery; and (3) entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. However, these issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2015).
FINDINGS OF FACT
1. The Veteran is service-connected for residuals of a left knee injury, status post arthroscopy, and depression.
2. The Veteran's service-connected residuals of a left knee injury, status post arthroscopy, have not resulted in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or treatment with immobilization by cast of one major joint or more.
3. The Veteran's service-connected left knee disability and depression have not resulted in hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days.
CONCLUSIONS OF LAW
1. The criteria for a temporary total evaluation for surgery necessitating at least one month of convalescence, for surgery with severe postoperative residuals, or for treatment with immobilization by cast of one major joint or more, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.30 (2015).
2. The criteria for a temporary total evaluation for hospital treatment in a VA or an approved hospital for a period exceeding 21 days, or for hospital observation at VA expense for a service-connected disability for a period exceeding 21 days, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.29 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a) (2015).
There are some claims to which VA's duties to notify and assist do not apply. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Such claims include where, as here, there is no dispute as to the facts, and the law is dispositive. Mason v. Principi, 16 Vet. App. 129. The United States Court of Appeals for Veterans Claims (Court) has held that VA's duties to notify and assist do not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, the Board concludes that no further action is necessary under VA's duties to notify and assist, since all evidence needed to adjudicate the claim is in the record.
The Veteran is seeking entitlement to a temporary total evaluation based on treatment for a service-connected or other condition subject to compensation.
A temporary total disability rating will be assigned if treatment of a service-connected disability resulted in: (1) surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (2015).
Similarly, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. 38 C.F.R. § 4.29 (2015).
In this case, service connection is currently in effect for residuals of a left knee injury, status post arthroscopy, and depression. VA treatment records show that the Veteran has received ongoing treatment for left knee pain and depression throughout the appeal period. However, the evidence of record does not reflect that the Veteran's service-connected residuals of a left knee injury ever required surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or treatment with immobilization by cast of one major joint or more during the period on appeal. See 38 C.F.R. § 4.30. Additionally, the evidence of record does not establish that the Veteran's service-connected left knee disability and depression ever resulted in hospital treatment in a VA or an approved hospital for a period exceeding 21 days or hospital observation at VA expense for a service-connected disability for a period exceeding 21 days during the period on appeal. See 38 C.F.R. § 4.29.
As a matter of law, the Board finds that the Veteran is not entitled to a temporary total evaluation based on treatment for a service-connected or other condition subject to compensation. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law).
ORDER
Entitlement to a temporary total evaluation based on treatment for a service-connected or other condition subject to compensation is denied.
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TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs